Al Gore, George Washington, and the Grace of Stepping Down
I was a thirty-year-old lawyer on the Gore-Lieberman 2000 election recount team in Florida. For all its historic significance, my primary memory of the experience is a blur of back-to-back-to-back all-nighters, laboring alongside a small team of dedicated friends and colleagues in the Tallahassee Law Offices of Berger Singerman, writing briefs for the next court filing, and the next.
Joe Lieberman’s recent op-ed, A Disputed Election: My Lesson from 2000, reminded me of the last of those long nights, Dec. 12–13.
The Supreme Court of the U.S. (SCOTUS) issued its opinion late evening on the 12th. By a vote of 7–2, the Justices declared the Florida Supreme Court’s (SCOFL) order for a statewide manual recount of undervotes to violate the 14th Amendment’s Equal Protection Clause. (An undervote is a ballot on which counting machines detected no vote for President. The notorious ‘hanging chads’ were an undervote problem.)
To be transparent — I believe that the ruling in Bush v. Gore was politically motivated, logically flawed, and ultimately incorrect, resulting in the disenfranchisement of legitimate votes that would have made Al Gore President of the United States. But I am sympathetic to the Court’s position on the Equal Protection issue, in which Justices Breyer and Souter concurred with the Scalia Five.
Case in point: this photograph of a real ballot from Pensacola. Florida law clearly dictates that, regardless of a technical defect in filling out the ballot, if the intent of the voter can clearly be discerned, ‘thou shalt count the vote.’ Yet despite the abundantly clear expression of intent on this technically defective ballot, this vote did not count — it was an overvote, outside the SCOFL order. (An overvote is a ballot on which counting machines detect two or more votes for President). Undervote and overvote ballots, the 7–2 majority ruled, are similarly situated voters treated differently under law: the classic definition of an equal protection violation.
But the ruling left a ray of hope. As Sen. Lieberman writes, the legal team, led by field general Ron Klain (a singularly competent professional, whose service as President-elect Biden’s Chief of Staff should give this anxious nation confidence), saw a viable path to correct the recount order and continue the count. We wrote a brief to that effect overnight; very early on the morning of the 13th we shared it with Vice President Gore for his consideration.
The argument followed the Dissent in Part signed by Justices Breyer and Souter. It focused on the question of timing. Justice Scalia, writing for a 5–4 majority, said essentially, “time’s up!” He invoked an administrative statute requiring the states to submit their lists of electors for processing. That did not leave enough time to conduct a revised statewide recount of under- and over-votes.
Justices Breyer and Souter, however, pointed out that the Constitutional deadline was six days later than the statutory deadline. They made the compelling case that the right to have one’s vote counted is fundamental to the Constitution’s democratic framework, and therefore should take priority over the administrative statute.
We wrote a motion and brief to that effect, asking SCOFL to revise and proceed with its statewide recount — this time manually counting all ballots rejected by the machines. Time would be tight, but sufficient.
Vice President Gore called the legal team early on the morning of the 13th. He thanked us with real warmth for the work. Knowing there was still a viable legal argument, he said, gave him the choice to fight on or to concede on his own terms. He had concluded that preserving America’s 200+ year tradition of peaceful transition of power by democratic vote was more important than the interests of any politician, party or program. That day he made his concession and gave arguably the best speech of his political career. “Partisan feeling,” he quoted Sen. Stephen Douglass, “must yield to patriotism. I’m with you, Mr. President, and God bless you.”
Al Gore did right. Even those of use in the ‘war party’, who worked hard on that final brief and urged him to one more battle with the weapon we had forged, conceded that. The magnanimity by which he did so left no room for bitterness. We shared a beer and war stories with members of Bush’s recount team later that morning (yes, morning). And while many still believe that SCOTUS’s majority opinion ‘stole’ the election from Gore, it never inspired rancor or revanchism within his partisans. Our leader set the tone for acceptance and reconciliation.
Contrast Gore’s patriotic act with the machinations of 2020’s incumbent. The comparison could not be starker. Despite insuperable margins in multiple states, and wholly without evidence, Trump pollutes the Twitterverse with accusations of MASSIVE FRAUD!!! and bogus claims, I WON!!!!
The President’s words are easy to dismiss as the bloviation of a sore loser. And I do not believe that he will try to circumvent the results by unconstitutional means. The current litigation will be dismissed as without merit, any discrepancies in the count will fall far short of Biden’s margin of victory, and President Trump will, in practical terms, accept the reality of his electoral defeat by leaving office in January.
Unlike Gore, however, Trump he will not concede. He will not acknowledge and accept reality with grace, or encourage his supporters to do the same, or exhibit the spirit of reconciliation that made Gore’s act great. He will instead continue to nurture the myth that he did not in fact lose, spout falsehoods that the election was stolen, and take every opportunity to undermine confidence in our democratic institutions.
Trump’s base will nurse a sense of grievance. Many will tell themselves, if we cannot trust our democracy (as their man tells them they cannot), then all is fair in the next go-around. Some portion of the country, encouraged in their refusal to reconcile with the results, and steeped in the mythology of a rigged election, might be inspired to return what they see as like-for-like. Election fraud, intimidation, criminal prosecution of political opposition — the world has plenty of examples to show of damaged democratic culture, and they are not pretty.
In some ways, we got lucky this cycle. Voting was smooth beyond expectations despite unprecedented challenges. The margin, though narrow, was wide enough to obviate the kind of single-ballot scrutiny we saw in Florida 2000. Were it otherwise, who knows what level of acrimony and acts of intimidation and violence we might be experiencing now? May we be so fortunate in future elections.
Americans at all levels, starting with national leadership, must do all we can now to heal our divisions and mend the badly frayed fabric of our democracy.
Before closing, let me share an object lesson in just how precious our democratic tradition is. I actually litigated not one but two presidential recounts in 2000–01. The second was in Uganda, where I was asked by a dear friend from law school to advise the legal team of opposition candidate Kizza Besigye, who was contesting his apparent defeat by incumbent President Yoweri Museveni.
Besigye’s claim was a good one. The election law recognized that the will of the people, expressed as majority of votes in free and fair election, is the essential underpinning of legitimate government. Therefore, if the litigant can prove that (i) there were problems with the election, (ii) of sufficient magnitude to cast the results in doubt, the court could order a new election. We estimated, based on statistical analysis of admittedly scant data (the government denied our requests for precinct-by-precinct voting data which it uniquely held), that one out of three ballots counted was a ‘ghost’ — a fraud. Those numbers approached the incumbent’s margin of victory.
The Supreme Court of Uganda ruled unanimously that the elections were not free and fair, but determined by 3–2 majority decision that they did not substantially affect the result, and therefore declined to nullify the outcome.
Disappointing to say the least.
I was told a story over drinks by the editor of a national newspaper after the decision was announced. He said this was what he had heard from sources, but could not corroborate:
The original alignment was 4–1 on the critical issue in favor of nullifying the election. The Chief Justice called Pres. Museveni to give him advance notice of the announcement. Pres. Museveni responded approximately as follows: ‘That’s disappointing. The military has informed me that they believe any further electioneering in the country would be destabilizing. And as you know, Mr. Chief Justice, having co-authored the Constitution with me, as President I am obligated, if I believe there is risk of instability, to turn control over the country to the military High Command’ — which, he did not need to add, Museveni chaired. ‘Isn’t there something you might have missed?’
Hence the 3–2 vote against.
The result was more than a disappointment to the challenger. On the wrong side of an emboldened authoritarian incumbent, Besigye soon found himself in jail and exile. Two decades later, he remains a champion of democracy; he remains as well under constant threat of arrest and violence, at one point earning the dubious honor of ‘most imprisoned person in the world.’ Uganda remains under Museveni’s repressive rule.
The fates of Kizza Besigye and Uganda are a far cry from those of Al Gore — who after defeat went on to win a Nobel prize, an Oscar, partnership at Kleiner Perkins and a Board seat at Apple — and of these United States — which have peacefully transitioned power twice since Bush v. Gore, and should do so again in the next six weeks. For all its flaws, ours remains a much healthier democratic culture. But it being sorely tested.
My thoughts turn to George Washington. A great military commander, a unifying figure at the birth of our nation, a successful President — yet immortal for stepping down voluntarily from that office. He set the critical precedent. No man, no matter how great in the eyes of his supporters (or himself), is indispensable. No one is more important than the nation.
In the unbreakable tradition of George Washington, America’s leaders step down when their time is up, or when voters tell them to go. They don’t punish political opponents from positions of power. They don’t twist the arms of Supreme Court Justices, Michigan state legislators, the Georgia Secretary of State, countless county clerks, or any other independent public servants to circumvent the will of the people expressed in free and fair elections. They don’t deny truth or trash democracy to salve their ego and preserve their political prospects.
Reverence for constitutional norms is what sets great nations apart. If he really means to ‘keep America great,’ President Trump should respect our traditions. The people have spoken. It is time for him to step down with grace.
